The Battle to Save the Constitution, limited government, federalism, and liberty

A Gaping Hole on the Court

The death of Supreme Court Justice Antonin Scalia on February 13 represents an enormous loss to American conservatism—and a challenge to those who hope to name his successor. Ordinarily, the sitting president would nominate a replacement, and President Obama has already indicated his intention to do so. But this is an election year. According to Ed Whelan, president of the Ethics and Public Policy Center, “It’s been more than 80 years since a Supreme Court justice was confirmed in an election year to a vacancy that arose that year.” Indeed, under its informal “Thurmond Rule” the Senate can block judicial nominations in an election year. Democrats invoked the Thurmond Rule to oppose George W. Bush’s nominees. This time around, Senate majority leader Mitch McConnell appears ready to take the same approach.

At stake is whether the Court will be reconstituted with a liberal majority intent on reversing Justice Scalia’s extraordinary legacy. With three decades on the bench, Scalia was the longest-service member of the current Court. Appellate judge Richard Posner, who in recent years became a harsh Scalia critic, described him in 2011 as “the most influential justice of the last quarter century.”

When he became an associate justice in 1986, Scalia’s judicial philosophy lay on the outskirts of the Court and of the American legal establishment. Over time, however, his commitment to textualism and originalism gained traction, even among the Court’s more liberal members. As a textualist, Scalia maintained that courts must follow the clear language of statutes and resist the temptation to import their policy preferences into the law—the defining sin of judicial activists. He was contemptuous of efforts to interpret laws via “legislative history,” a grab-bag of self-serving congressional utterances from which a clever judge could usually extract some statement supporting his or her preferred outcome. As the New York Times’s Adam Liptak reports, Scalia’s campaign against legislative history “was largely successful. Advocates and other justices rely on legislative history sparingly these days.”

In the area of constitutional law, Scalia was the Court’s leading originalist: he sought to interpret the Constitution’s text as it would have been understood by those who ratified its provisions. Here again, Scalia’s influence is palpable. Though the Court’s liberal justices differed with him in their conclusions, they increasingly couched their arguments in originalist terms. By the time Scalia wrote the majority opinion in the 2008 case of Heller v. District of Columbia, which held that the Second Amendment establishes an individual right to bear arms, the entire court was engaged in a debate over how the Founders understood the amendment’s somewhat enigmatic language. References by Supreme Court justices to the “Living Constitution” theory—that the meaning of the Constitution must change to keep pace with the times—are now vanishingly rare.

Another Scalia decision, Employment Division v. Smith, held that individuals cannot use the First Amendment’s “free exercise” clause to demand exemptions from laws on religious grounds. That ruling continues to split conservatives, who generally support robust protection for religious liberties, particularly in the context of today’s culture wars. The Religious Freedom Restoration Act, or “RFRA”—a favorite among conservatives—was enacted as a direct response to Smith.

Smith demonstrates an important point about Scalia’s intellectual rigor: he regularly found himself at odds with conservatives because of his commitment to following the letter of the law. If the law leads to unwelcome consequences, Scalia insisted, it’s up to Congress to change it or to the people to amend it (in the case of the Constitution). Thus, in 2004’s Hamdi case, he opposed the Bush administration’s position that an American citizen who had allegedly taken up arms with the Taliban could be held indefinitely without charges. In other decisions, Scalia has sought to strengthen the rights of the accused, notwithstanding his strong personal preference for law and order. In Crawford v. Washington (2004), for example, he held that criminal defendants have a right to live testimony from the witnesses against them, even when other forms of testimony might be available.

Much of Scalia’s influence came through his dissenting opinions. Well-researched and persuasively written, his dissents planted seeds that often bore fruit in later cases. In the 1988 Morrison v. Olson case, Scalia found himself in a minority of one, arguing against Congress’s power to vest executive powers in bodies outside the president’s control (in that case, the independent counsel). But his views eventually carried the day in 2010’s Free Enterprise Fund v. PCAOB, in which the Court held that Congress couldn’t create an executive body that was effectively insulated from presidential control.

Even when he wasn’t successful, Scalia’s dissents were prescient—and often biting. In Lawrence v. Texas, Scalia rightly predicted that the Court’s declaration of a right to engage in consensual homosexual relations would lead to a right to same-sex marriage. In the case that established that right—Obergefell v. Hodges—Scalia mocked the soaring rhetoric of Justice Anthony Kennedy’s majority opinion, declaring that those who signed on to it ought to “hide [their] head in a bag.”

In other contexts, Scalia could work with the Court’s liberals. Unlike associate justice Clarence Thomas—the Court’s most intellectually consistent originalist—Scalia made concessions to stare decisis, the principle that prior court decisions shouldn’t be disturbed unless there is a compelling reason to do so. On that basis, he generally supported the New Deal Court’s expansive reading of the Commerce Clause—refusing to strike down the Controlled Substances Act in Gonzalez v. Raich (2004). He also refused to disturb the judge-made doctrine of substantive due process—which is said to “incorporate” certain substantive guarantees into the due-process clause of the Fourteenth Amendment. Thomas disagreed on both counts, but Scalia’s position probably gave him more credibility with the Court’s liberals.

Scalia’s intellect and his appreciation of the political realities of the Court made him the most effective conservative jurist of his time. His death leaves a gaping hole, and it may signal the beginning of a period of drastic change on the Court. Liberal lion Ruth Bader Ginsburg (a pancreatic-cancer survivor) is 82; Kennedy, the “swing vote” justice, is 79. Whether the next generation of justices builds upon or reverses Scalia’s legacy depends entirely on the outcome of the election in November.

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